Ex Parte Yan et al

Board of Patent Appeals and Interferences

May 21, 2012

10864204 (B.P.A.I. May. 21, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________________

Ex parte YONG YAN and BO SHEN
____________________

Appeal 2009-013148
Application 10/864,204
Technology Center 2400
____________________

Before MAHSHID D. SAADAT, ERIC S. FRAHM, and ERIC B. CHEN,
Administrative Patent Judges.

FRAHM, Administrative Patent Judge.

DECISION ON APPEAL

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STATEMENT OF CASE
Introduction
Appellants appeal under 35 U.S.C. § 134(a) from a final rejection of
claims 1-16, all the claims pending in the application. We have jurisdiction
under 35 U.S.C. § 6(b).
We affirm.
Appellants’ Disclosure
Claims 1, 10, and 12 are independent and recite a system and method
for managing heterogeneous resources across a distributed computer
network, and a computer-readable medium having instructions for executing
the method. Appellants’ resource management system includes first and
second management services for (i) monitoring resource status and capacity,
and (ii) allocating resources from a global resource pool based on resource
requests (Abs. at Spec. 18; claim 1), as well as a directory service for
maintaining information about resources in the global resource pool (Spec.
8:7-18; claim 1).
Exemplary independent claims 1, 5, and 13 under appeal read as
follows:
1. A system for managing heterogeneous resources
across a distributed computer network, the system including
one or more computer readable media storing instructions
executable by a computer and the system comprising:
a plurality of first management services having resources
associated therewith, each first management service hosting a
resource consumer having a resource capacity demand, each
first management service implementing objects for monitoring
the resources associated with first management service so as to
obtain a value of capacity for each resource., comparing the
obtained value of capacity to the resource capacity demand of
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the resource consumer so as to obtain a difference value, and
generating a resource request according to the difference value;
a second management service implementing objects for
receiving the resource requests from the plurality of first
management services, allocating free resources from a global
resource pool according to the resource requests and providing
the allocated resource to the first management services; and
a directory service maintaining dynamic and static
information about resource in the global resource pool, the
dynamic and static information including profiles that contain
information about users or the resource consumers, resource
profiles that contain all static information about the resources in
the global resource pool, and resource domain indexing files
where each file indexes resources in the global resource pool
that are allocated to the plurality of first management services,
wherein the directory service monitors the global
resource pool and receives one or more of the dynamic and
static information from the resource in the global resource pool,
and the second management service uses the directory service
to allocate specific resources from the global resource pool to
the plurality of first management services when needed.
5. The system of claim 1 when the second management
service is capable of adjusting resource allocations amongst the
plurality of first management service so as to optimise system
performance.
13. The system of claim 1, wherein each first
management service includes a file management service
providing platform-independent file operations on
heterogeneous resources in the global resource pool, wherein
the operations include accessing files and directories on the
heterogeneous resources.
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Rejections1
(1) The Examiner rejected claims 1-5, 7, 10, and 12-16 as being
unpatentable under 35 U.S.C. § 103(a) over the combination of Kawai (US
2005/0144280 A1) and Loisey (US 7,389,219 B2). Ans. 5-8.
(2) The Examiner rejected claims 6 and 8 as being unpatentable under
35 U.S.C. § 103(a) over the combination of Kawai, Loisey, and Brittenham
(US 2002/0178254 A1). Ans. 9-10.
(3) The Examiner rejected claims 9 and 11 as being unpatentable
under 35 U.S.C. § 103(a) over the combination of Kawai, Loisey, and
Fellenstein (US 2005/0154789 A1). Ans. 10-11.
Appellants’ Contentions
(1) Appellants contend (App. Br. 11-16; Reply Br. 2-4) that the
Examiner erred in rejecting claims 1-5, 7, 10, and 12-16 under
35 U.S.C. § 103(a) over Kawai and Loisey because:
(a) Kawai fails to teach a second management service for handling
resource requests from a plurality of first management services, as recited in
claim 1 (App. Br. 13-14; Reply Br. 2-4);
(b) Kawai’s system control device 16 does not receive resource
requests from plural first management services, Kawai’s paragraph [0040]
does not disclose that the back-stage center receives requests from plural
front-stage centers, and Kawai’s paragraphs [0068] and [0069] disclose each

1 Claims 1-9, 12-14, and 16 were rejected under 35 U.S.C. § 101 as being
drawn to non-statutory subject matter in the Final Rejection mailed July 11,
2008. The Examiner has withdrawn the § 101 rejection in the Answer (Ans.
13), accordingly, this rejection is not before us on appeal and will not be
further addressed.
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back-stage center only receives requests from one front-stage load
distribution device (Reply Br. 2-3);
(c) Loisey fails to teach or suggest that directory service system 135
includes resource domain indexing files, as recited in claims 1, 10, and 12
(Reply Br. 3-4);
(d) Loisey fails to disclose, teach, or suggest any index files or
information pertaining to resources in a global resource pool, as recited in
claim 1 (App. Br. 15; Reply Br. 3-4); and
(e) Loisey’s “Active Directory” described at column 12, line 57 does
not necessarily include a tree structure, and the “Active Directory” merely
stores relationships between users, their data, and their applications (Reply
Br. 4 (citing Loisey at col. 12, ll. 65-67));
(f) with regard to claim 5, Kawai (Fig. 15; ¶¶ [0068] and [0069]) fails
to teach that service 1´ in centers 2 and 3 receive requests from multiple first
management services (App. Br. 14-15); and
(g) with regard to claims 13, 15, and 16, Kawai and Loisey fail to
teach or suggest platform-independent file operations on heterogeneous
resources in the global resource pool, and Loisey does not disclose
heterogeneous resources (App. Br. 15-16).
(2) Appellants contend (App. Br. 16) that the Examiner erred in
rejecting claims 6 and 8 under 35 U.S.C. § 103(a) over Kawai, Loisey, and
Brittenham and in rejecting claims 9 and 11 under 35 U.S.C. § 103(a) over
Kawai, Loisey, and Fellenstein because Brittenham and Fellenstein fail to
cure the deficiencies of Kawai and Loisey.

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Issues on Appeal
Based on Appellants’ arguments, the following issues are presented
for appeal:
Did the Examiner err in rejecting claims 1-5, 7, 10, and 12-16 as being
obvious because the combination of Kawai and Loisey fails to teach or
suggest the “second management service” and “directory service”
limitations of claims 1, 10, and 12?
Did the Examiner err in rejecting claim 5 as being obvious because
the combination of Kawai and Loisey fails to teach or suggest the “second
management service” limitation of claim 5?
Did the Examiner err in rejecting claims 13, 15, and 16 as being
obvious because the combination of Kawai and Loisey fails to teach or
suggest the “file management service” that provides “platform-independent
file operations on heterogeneous resources,” as set forth in claims 13, 15,
and 16?

PRINCIPLES OF LAW
In rejecting claims under 35 U.S.C. § 103, it is incumbent upon the
Examiner to establish a factual basis (see In re Fine, 837 F.2d 1071, 1073
(Fed. Cir. 1988)), and provide articulated reasoning in the rejection
possessing a rational underpinning to support the legal conclusion of
obviousness (KSR Int’l Co. v. Teleflex, Inc., 550 U.S. 398, 418 (2007) (citing
In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006))). When an examiner
establishes a prima facie case of obviousness, the burden shifts to the
applicant to show non-obviousness. See In re Rijckaert, 9 F.3d 1531, 1532
(Fed. Cir. 1993).
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It is well settled that mere lawyer’s arguments and conclusory
statements, which are unsupported by factual evidence, are entitled to little
probative value. In re Geisler, 116 F.3d 1465, 1470 (Fed. Cir. 1997); In re
De Blauwe, 736 F.2d 699, 705 (Fed. Cir. 1984). Nor can attorney argument
take the place of evidence lacking in the record. Meitzner v. Mindick, 549
F.2d 775, 782 (CCPA 1977).

ANALYSIS
We have reviewed the Examiner’s rejections in light of Appellants’
contentions in the Appeal Brief (App. Br. 11-16) and the Reply Brief (Reply
Br. 2-4) that the Examiner has erred.
We disagree with Appellants’ conclusions. We adopt as our own
(1) the findings and reasons pertaining to obviousness and set forth by the
Examiner in the action from which this appeal is taken, and (2) the reasons
set forth by the Examiner in the Examiner’s Answer in response to
Appellants’ Appeal Brief (see Ans. 5-15). We concur with the conclusions
reached by the Examiner, and highlight and address specific findings and
arguments for emphasis as follows.
Claims 1, 10, and 12
With regard to claims 1, 10, and 12 the Examiner has provided a
factual basis and articulated reasoning with a rational underpinning to
support the conclusion of obviousness (see Ans. 5-7). See KSR, 550 U.S. at
418. Kawai’s back-stage center 12-2 receives users’ requests (¶ [0040]), and
“simultaneously responds to server requests from a plurality of data centers”
(id. (emphasis added)). In addition, Figure 2 of Kawai shows plural front-
stage center load distribution devices (i.e., first management services)
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associated with service 1 and service 2 of the front-stage center 12-1, and
Figure 15 shows plural center load distribution devices (i.e., first
management services) associated with service 1 and service 2 of the center
1. In this light, we cannot agree with Appellants’ argument (Reply Br. 2-3)
that Kawai’s system control device 16 does not receive resource requests
from plural first management services.
We are also not persuaded by Appellants’ arguments (App. Br. 15;
Reply Br. 2-4) that Loisey fails to teach or suggest that directory services
system 135 includes resource domain indexing files as recited in claims 1,
10, and 12. Loisey discloses a “tree structure” for use in the directory
service 135 (which is operated by the domain controller 130) that controls
the relationship between distributed resources (col. 12, ll. 56-67), and
organizes and stores information on users (col. 13, ll. 11-15) “similar to the
way that some operating systems use folders and files to organize
information on a computer” (col. 13, ll. 28-30). We agree with the Examiner
that Loisey’s tree structure and root folders for the directory suggest the use
of index files (Ans. 14), and in fact we find Loisey’s tree structure and
organization of files is equivalent to the recited “resource domain indexing
files” (claims 1, 10, and 12). Appellants have provided no evidence on this
record to support the assertion that Loisey fails to teach or suggest that
directory service system 135 includes indexing files or the equivalent
thereof, apart from mere conclusory statements which are unsupported by
factual evidence and entitled to little probative value. In re Geisler, 116
F.3d at 1470; In re De Blauwe, 736 F.2d at 705.

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Claim 5
With regard to the obviousness rejection of claim 5, we agree with the
Examiner’s findings (Ans. 7) that Kawai teaches that the back-stage center
load distribution device 13-2 is capable of adjusting resource allocations
among the load distribution devices of service 1 and service 2 to optimize
system performance (see also ¶¶ [0053], [0069], and [0084]). Appellants
have not shown otherwise.
Claims 13, 15, and 16
Claims 13, 15, and 16 recite that each of the first management
services includes a “file management service” that provides file operations
on heterogeneous resources. We agree with the Examiner (Ans. 8) that this
limitation is taught or suggested by the combination of Kawai and Loisey,
and note that Loisey discloses a file server 150 that is part of the directory
services system 135 to oversee operations between components (col. 12, ll.
56-67).
With regard to the “heterogeneous resources” limitation recited in
claims 13, 15, and 16, Kawai discloses heterogeneous resources such as web
server 15-1, database server 14-1, and file server 14-2 in Figure 2. The
ordinary meaning of heterogeneous is “differing in kind.” Webster’s Third
New International Dictionary, p. 1062 (1971). Absent a special definition
for “heterogeneous resources” in Appellants’ Specification,2 we find the
ordinary meaning for this limitation to be electronic systems that use a

2 Appellants describe heterogeneous resources 116 (shown in Fig. 1) as
having “different types” (Spec. 5:19-27), and a file management service 102
or 118 for providing access to files and directories of the heterogeneous
resources 116 (Spec. 6:26-30). However, the Specification is otherwise
silent as to the definition of “heterogeneous resources.”
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variety of different types or kinds of computational units, such as processors,
such as processors having different instruction set architectures (ISAs) or
configurations. Because Kawai discloses plural resources such as web
server 15-1, database server 14-1, and file server 14-2 that each have
different configurations and/or ISAs, Kawai’s resources are heterogeneous.
In addition, Kawai discloses that the service capacities for each of the plural
servers are not uniform, the servers have different characteristics (¶ [0053]),
and the addition/deletion of servers is based on the capacity for each server
which “is calculated based on server specifications, such as a CPU function,
a network configuration and the like” and then the servers are allocated
appropriately (¶ [0043]). Thus, Kawai teaches or suggests that the web
server, database server, and file server (i.e., resources) are of different types,
and have different instruction sets, configurations, CPU functions,
capacities, and/or characteristics.
In view of the foregoing, Appellants’ argument (App. Br. 15-16) that
Kawai and Loisey fail to teach or suggest platform-independent file
operations on heterogeneous resources in the global resource pool, as recited
in claim 13 and similarly recited in claims 15 and 16, is unpersuasive.
Accordingly, we will sustain the Examiner’s rejection of claims 13, 15, and
16.
In view of the foregoing, Appellants’ arguments have not shown that
the Examiner erred in finding that the combination of Kawai and Loisey
teaches or suggests the inventions recited in claims 1, 5, 10, 12, 13, 15, and
16. Accordingly, we will sustain the obviousness rejection of independent
claims 1, 10, and 12, and claims 2-5, 7, and 13-16 which depend
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respectively therefrom, based upon the combined teachings and suggestions
of Kawai and Loisey.
Claims 6, 8, 9, and 11
We will sustain the Examiner’s rejections of (i) claims 6 and 8 under
§ 103(a) over Kawai, Loisey, and Brittenham, and (ii) claims 9 and 11 under
§ 103(a) over Kawai, Loisey, and Fellenstein for similar reasons as
discussed with regard to claims 1 and 10 from which claims 6, 8, 9, and 11
respectively depend.

CONCLUSIONS
(1) The Examiner has not erred in rejecting claims 1-5, 7, 10, and 12-
16 as being obvious, because the combination of Kawai and Loisey teaches
or suggests the limitations of claims.
(2) The Examiner has not erred in rejecting claims 6 and 8 as being
unpatentable under 35 U.S.C. § 103(a) over the combination of Kawai,
Loisey, and Brittenham.
(3) The Examiner has not erred in rejecting claims 9 and 11 as being
unpatentable under 35 U.S.C. § 103(a) over the combination of Kawai,
Loisey, and Fellenstein.
(4) Claims 1-16 are not patentable.

DECISION
The Examiner’s rejections of claims 1-16 are affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv).
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AFFIRMED

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